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Biden EPA Asks D.C. Circuit to Freeze Mandate on Clean Power Plan

Feb. 12, 2021, 10:33 PM

The Environmental Protection Agency asked courts on Friday to partially freeze a mandate that was issued when judges scrapped the Affordable Clean Energy rule last month.

The agency wants to delay the order that vacates former President Donald Trump’s repeal of the Obama-era Clean Power Plan while the EPA crafts new standards for power plant greenhouse gas emissions, according to a motion filed at the U.S. Court of Appeals for the District of Columbia Circuit.

The request would ensure that the Clean Power Plan wouldn’t go into effect and create obligations for states while the EPA reviews its options for coal-fired plant carbon rules under the Clean Air Act.

“EPA strongly believes that no [existing power plant] rule should go into effect until such action is completed,” the agency said in Friday’s motion. “This will promote regulatory certainty and to avoid the possibility of administrative disruption.”

The acting assistant administrator for the Office of Air and Radiation, Joseph Goffman, reinforced the need for regulatory certainty in a Friday memo about the motion to regional EPA staff. He insisted that the decision to toss the ACE rule wouldn’t result in any obligations for states to submit GHG plans in the interim period between rulemakings.

“Because the court vacated ACE and did not expressly reinstate the CPP, EPA understands the decision as leaving neither of those rules,” Goffman said in the memo.

Urgency for New Rule

Groups such as the Environmental Defense Fund lauded the motion for reinforcing the urgency for new power plant pollution limits.

“There are currently no nationwide limits on climate pollution from existing fossil fuel power plants, and EPA must get to work developing new protections,” Environmental Defense Fund senior attorney Ben Levitan said in a statement on the filings.

Trump’s EPA crafted the hotly contested ACE rule to replace the more stringent Clean Power Plan, which was never implemented after lengthy legal fights. The D.C. Circuit last month scrapped the ACE rule entirely for giving no valid legal basis for promulgating weakened standards for the industry.

The decision struck a major blow to the outgoing Trump administration’s deregulatory agenda, and handed the Biden administration a clean slate to craft new standards for coal plant greenhouse gas emissions.

The case is American Lung Association v. EPA, D.C. Cir., No. 19-1140, motion filed 2/12/21.

To contact the reporter on this story: Jennifer Hijazi in Washington at jhijazi@bloombergindustry.com

To contact the editors responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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